EU/Morocco relations and the Western Sahara: the ECJ and international law

On Wednesday 21
Dec 2016 the Court of Justice rendered its appeals
decision in the case C-104/16 P Council
v. Front Polisario. This was a Grand Chamber judgment under the expedited
procedure which overturned the decision
by the EU General Court in T-512/12 Front
Polisario v Council decided a little over a year ago.

Background

The Front
Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims
to end Moroccan presence in the Western Sahara territory and has been
recognised internationally by over 40 countries with Algeria being regarded as
its main backer. It had a difficult year (see here and here) after its leader
died and Morocco, after a thirty-year absence from the African Union, applied
to re-join (a vote will be held in January 2017). While Polisario did not win
this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo
Vidigal in EJILTalk, the
decision by the General Court had been seen as an extraordinary victory by the
Polisario as it was granted standing to bring a case against the Council
decision concerning reciprocal liberalisation of certain agricultural products between
the EU and Morocco (Liberalisation Agreement). The General Court recognised,
contrary to objections by the Council and Commission, that Polisario had legal
personality and could prove direct and individual concern (the standing
requirement to challenge a decision in the EU courts, unless the challenger is
an EU institution or Member State).

Polisario was
concerned because the agreement, despite differing interpretations of its
territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario
in particular argued that 140 undertakings based in Western Sahara were
included in the EU Commission’s website list of approved Moroccan exporters, and
both the Council and Commission had indicated at the oral hearing that the
contested decision was de facto applied to the territory of Western Sahara
(para 87). The General Court cited the C-386/08 Brita
judgment by the CJEU extensively because in that judgment the Court had
rejected products produced in the West Bank as being covered by the EU/Israel
trade agreement, but did not rely on this judgement because neither the EU nor
any of its Member States had ever recognised Polisario as representing Western
Sahara as a sovereign state. However, the General Court confirmed direct and
individual concern for Polisario to sue because the EU institutions by not
including a clause excluding the Western Sahara territory from the application
of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the
interpretation of the Association Agreement which applied it to the part of
Western Sahara controlled by Morocco (para 102).

On the
substance, the General Court rejected all of Polisario’s substantive claims bar
one. It agreed with Polisario that the Council had overstepped its wide margin
of discretion in international relations by not ensuring that the exploitation
of natural resources of Western Sahara under Moroccan control is beneficial to
the population of that territory and thus does not violate the population’s
fundamental rights. It said the “Council must examine, carefully and
impartially, all the relevant facts in order to ensure that the production of
goods for export is not conducted to the detriment of the population of the
territory concerned, or entails infringements of fundamental rights, including,
in particular, the rights to human dignity, to life and to the integrity of the
person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition
of slavery and forced labour (Article 5 of the Charter of Fundamental Rights),
the freedom to choose an occupation and right to engage in work (Article 15 of
the Charter of Fundamental Rights), the freedom to conduct a business (Article
16 of the Charter of Fundamental Rights), the right to property (Article 17 of
the Charter of Fundamental Rights), the right to fair and just working
conditions and the prohibition of child labour and protection of young people
at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228).

By leaving the question solely to the Moroccan authorities, the Council failed
to fulfill its obligation to examine all elements of the case. As a consequence
the General Court annulled the Council decision. Several international
commentators hailed the decision as beneficial for the international protection
of human rights. Eyal Benvenisti strongly
welcomed the decision because it highlighted that even indirect
contributions to human rights violations through trade could violate
international law.

ECJ judgment

In this week’s
appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed,
though in much fewer words, the Opinion
of Advocate General Wathelet who on 13 September 2016 had concluded that the
Court should set aside the General Court decision and dismiss the action by Polisario
as inadmissible. He also expressed the opinion that the General Court erred in
law when it applied the EU Charter of Fundamental Rights to the population of
the Western Sahara (para. 272), although he did accept that international human
rights law generally could apply to the EU’s decision.

The Council,
supported by the Commission, alleged six errors of law of which the Grand
Chamber only examined one in detail. It focussed on the standing of Polisario
and the question whether the Liberalisation Agreement applied to Western
Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement
applied to that territory as a finding of fact, but rather a legal
interpretation by the General Court. The Court of Justice concluded that the
General Court went too far when it ruled that the absence of an application
clause in the Association Agreement meant that the EU had accepted the view by
the Moroccan authorities which see Western Sahara as an integral part of the
Kingdom of Morocco.

The Court of
Justice then proceeded to analyse: a) the principle of self-determination; b) Article
29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different
intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory.”); and c) the
relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to
self-determination by the peoples of a Non-Self-Governing Territory and its
status as an essential principle of international law, the General Court erred
in law when assuming that the Association Agreement also applied to Western
Sahara.

With regards to Article 29 of the Vienna Convention the Court of
Justice clarifies that ‘its entire territory’ only refers to the territory
internationally recognised, and not the territory under its jurisdiction which
would be the wider expression. As such, the Court sided with the Commission
which argued that any extension of the application must be expressed in the
agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations,
or confer any rights, on third States without their consent” (para 100). It
concluded that the people of Western Sahara according to the ICJ
Advisory Opinion on Western Sahara constituted a third party in this
respect and had not expressed their consent. In the view of the Court, the
Liberalisation Agreement as a subsequent agreement is incapable of expanding
the scope of the previous Association Agreement. This interpretation can also
not be altered by the rule on subsequent practice in Art. 31 Vienna Convention.
Though the Commission and the Council were aware that the Moroccan authorities had
been applying the Association Agreement to Western Sahara for many years and the
institutions never opposed such application and though certain tariff preferences
de facto applied to product originating in Western Sahara, this did not
constitute clear subsequent practice. As such, the agreements did not apply to
Western Sahara and therefor Polisario lacked standing in the European
Courts.

Comment

This judgment contributes
to the practice of international law, like many domestic courts would, in that
it clarifies the rules of interpretation in the Vienna Convention on the Law of
Treaties. It clarified how the territorial scope of the international
agreements of the EU cannot be interpreted without reference to general public
international law. The fact that the EU and Morocco ‘agree to disagree’ about
the application of the Association and Liberalisation Agreements (AG Opinion
para 67), could not alter the fact that in the EU’s view said agreements only
applied to the territory of Morocco as internationally recognised.

Overall the
Court’s judgement highlights that its practice is becoming more sophisticated,
carefully evaluating the international legal arguments and not just accepting
the Commission’s or Council’s view on the matter. In many ways this highlights
that EU External Relations law has a greater body of international case law to
rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal
might become a bit trickier. While the Council tried to side with Morocco by
highlighting that despite the restrictive scope of the Association Agreement it
could be seen as “application without recognition” (AG Opinion para 67), the
Court very clearly asserted that the application of the Association Agreement
to Western Sahara required an explicit treaty provision. This might make future
relations between these two important partners more difficult. So, in some ways
this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be
seen if Polisario might bring a new case trying to challenge the de facto
application of the agreements to the territory also administered by Morocco. (Note
that another
case on these issues is already pending before the ECJ, following a
reference by a UK court, discussed further on the UK
Human Rights Blog). Unfortunately,
the Court of Justice did not venture, beyond self-determination, further into
the territory of human rights application to trade agreements. As Thomas Cottier
wrote in
2002, this will remain an important field to be discovered.